Monthly Archives: May 2015

“Are we there yet?”

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With the Santa Monica City Council’s action last week approving the new zoning ordinance, leaving only a pro forma second reading to finalize the new law, it looked like eleven long years of planning would soon come to an end. The light at the end of the tunnel was finally more glare than glimmer.

Slow down. We’re not there yet. Just when you think it might be safe for Santa Monica government to spend more time and resources on something other than responding irrationally to bad traffic, the anti-development group Residocracy is contemplating, dare I say threatening, a referendum on the zoning ordinance.

That glare that looked sunny turns out to be oncoming headlights.

According to a Lookout article headlined “Santa Monica Slow-Growth Groups look to Public Vote on Development Issues,” Residocracy is polling its members on whether they want to take to the street to gather signatures to overturn the new zoning law, and the group’s founder Armen Melkonians expects they will say yes. (Who’s going to say no?)

Melkonians told the Lookout that the new zoning, though approved by the council’s anti-development majority, “‘still creates density.’” “‘Are we going to grow Santa Monica,’” he asked, “‘so it doubles its population?’”

Well, the answer to that question is no, or at least not until a few generations or even centuries have passed. I mean, even if Santa Monica adds all of the 4,955 housing units predicted under the LUCE by 2030, that’s only about a 10 percent increase in the city’s stock of housing units. That’s unlikely even to result in a 10 percent increase in population, however, because for decades the average number of people living in each housing unit in Santa Monica has been in decline.

Even if—as Melkonians fears—Santa Monica should add more than 4,955 units, say, twice that many, by 2030, a 20 percent increase, and even if each percentage point increase in units translated into a percentage point increase in population, well, can someone do the math? How long would it take to double the number of housing units if there was a 20 percent increase every 20 years?

In any case a while, but any significant population increase is unlikely. To give some perspective, Santa Monica’s population in 1970 was 88,289. In 2010, after decades of purported “massive overdevelopment,” it was 89,736. (I know that estimates since the 2010 census have added a few thousand more residents, but the history of those population estimates is that they get debunked when the decennial census comes around. The estimates focus on the number of housing units, but historically haven’t take into account how many young Santa Monicans leave town each year rarely to return.)

Okay, I get it—surely Melkonians was being rhetorical. But that’s what happens when you start asking people to sign petitions. If the first casualty of war is truth, then the first casualty of a local referendum campaign must be any sense of reality.

Residocracy isn’t the only group talking about going to the voters. The Santa Monica Coalition for a Livable City (SMCLC), Santa Monica’s more establishment, less populist, anti-development group, is considering a Version 2.0 of the “Residents’ Initiative to Fight Traffic (RIFT), their unsuccessful 2008 initiative. SMCLC wants to give voters a veto over “large projects.”

Based on an open letter to supporters that SMCLC leadership published last week, it does not appear, however, that SMCLC wants to join in an effort to overturn the zoning ordinance. For now at least, based on the letter it appears that SMCLC leadership is celebrating the new law, and especially the reductions in the scope of the LUCE, as the product of the anti-development majority SMCLC helped elect last November.

This makes sense, since the SMCLC leadership has long ties to councilmembers Kevin McKeown and Ted Winterer and they view the new zoning law as an achievement.

But indications are that SMCLC wants to bring back a new version of RIFT. SMCLC has never trusted the City Council or planning staff, and according to the letter to supporters, “large projects must be subject to a resident vote.” SMCLC’s co-chair of SMCLC, Diana Gordon, told the Lookout that the group would support a measure like RIFT. SMCLC touted the fact that RIFT garnered more than 18,000 votes in 2008. (The problem for SMCLC was that nearly 51,000 Santa Monicans voted that year.)

Of course, as Melkonians acknowledged to the Lookout, the point of having votes on developments is to scare developers away. While according to him, “only the best projects would go through,” the opposite is true. Developers and landowners will build to the lowest common denominator, slicing and dicing their projects to slip under whatever the voter-approval threshold is. It’s strange to hear a group like SMCLC, which I believe honestly wants better projects to be built, promote voter control as a way to get them.

SMCLC blames RIFT’s loss in 2008 on, as Gordon told the Lookout, its being “‘outspent in a deceptive opposition campaign.’” “Deceptive” is in the eye of the beholder, but the last several elections, notably the votes in 2014 on Measures D and LC, if anything show that money doesn’t mean much in Santa Monica elections. Beyond the merits of any thing or person on the ballot, endorsements are what count. In 2008 most of the well-respected elected officials in and around Santa Monica opposed RIFT, and SMRR was neutral.

Promoters of new anti-development referendums, whether to overturn the zoning law or to make developments subject to popular vote, would no doubt base their campaigns on their conviction that the views of voters have changed.

We’d find out.

Thanks for reading.

Can Santa Monica regulate emissions at SMO? Let’s find out.

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Even if planes and jets made no noise, emitted nothing harmful, and never crashed, I’d still want to close Santa Monica Airport (SMO). Why? Because the airport and its mile-long runway, which the City owns, should be a public park and cultural facility that everyone can use instead of a privatized facility that benefits only a few users of private planes and jets. For this reason, I haven’t spent a lot of time analyzing technologies that might make the airport a better neighbor by making flying over neighborhoods less objectionable, such as by making aircraft quieter or cleaner. I’ve been more interested in figuring out how to close the airport to build the park.

As we know, however, closing SMO is complicated, because of the regulatory powers of the Federal Aviation Administration (FAA), not mentioned a tangled legal history. Briefly put, the City’s position is that as of July 1 it will have the right to close SMO, but proving that in court is difficult. If the City simply tries to close SMO, or does something the FAA considers equivalent to closing it, the FAA will likely get an injunction freezing the status quo, and begin its own administrative proceedings, where it has all the advantages, to determine the City’s rights.

The City wants the issue adjudicated in federal court, where the playing field will be more level. For that purpose the City brought a case in federal court in 2013 seeking a “declaration” of what its rights are. The FAA, not eager to have an independent federal judge decide the issue, got the case dismissed on procedural grounds. The question whether the City can get a decision from a federal district judge is now being decided in the Ninth Circuit Court of Appeals, with a decision not expected until 2016.

In the meantime, the City Council in March gave direction to staff to take various actions after July 1 designed to limit impacts of aviation uses at SMO and to enhance non-aviation uses—notably by converting twelve acres currently being used for aircraft tie-downs into parkland and by allowing non-aviation uses on the south side of the airport to negotiate longer term leases for the use of city-owned properties.

One thing the City Council did not do was follow a recommendation from the Airport Commission to add limits on aircraft emissions to leases to aviation businesses. The council followed the advice of City Attorney Marsha Moutrie, who gave her office’s opinion that federal legislation preempted any action the City would take regarding emissions. The commission and other supporters of emissions controls have, however, made the counter-argument that provisions in the City’s 1984 settlement agreement with the FAA allow the City to regulate emissions if the City acts before the 1984 agreement expires on July 1.

Now, however, City Councilmember Terry O’Day has put the issue back on the council’s agenda: he’s added an item for tomorrow night’s council meeting requesting consideration of an ordinance and leasing standards that would limit allowable emissions of air pollutants from aircraft and other sources at SMO.

I am a lawyer, but I’m not going to pretend to know enough about federal preemption law and the specific laws applicable to aviation to venture an opinion about who is right on the preemption issue. However, I’m not surprised O’Day is bringing this up.

O’Day is a veteran of the environmental movement. I remember him telling me, during the election campaign in 2012, before the City had decided on the bold move of suing the FAA in federal court, that he thought that pollution controls, which have greatly expanded in importance since the City battled the FAA in 1984, could be the City’s ultimate card to play against the FAA. Environmental science has shown how pollutants in the air are more dangerous than previously thought. As O’Day has reminded me, the need to reduce the negative health impacts of air pollution is what gave the environmental movement the ammunition it needed to begin to force the clean up the ports of Los Angeles and Long Beach.

Again, sorry, no opinions here on what can or should be done. Like a lot of people I’ll be listening to the discussion. If I can, I’ll try to sort things out in a future blog.

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Speaking of the airport, and battles over the airport, readers will probably recall that after the aviation industry filed its initiative (ultimately called Measure D on the 2014 ballot) to take control of SMO away from the City Council (and for all practical purposes preserve the status quo there forever), a group of eleven Santa Monica residents went to court to try to prevent the initiative from reaching the ballot.

It was a well-motivated move, but one that ultimately foundered because it turns out that it’s near impossible to prevent a measure with enough signatures from getting on a ballot in California. Even worse, a judge ordered the plaintiffs to pay $31,525 to reimburse some of the aviation industry’s legal fees, on the grounds that the lawsuit prejudiced the industry’s rights to free speech. This is a hardship for many of the plaintiffs, and for a couple of months a campaign has been underway to raise money to help them pay the bill. (As it happened, of course, Measure D lost big at the polls (after the aviation industry spent almost $1 million exercising its free speech rights!), but that doesn’t help the plaintiffs out—they are still on the hook.)

It now turns out you can help out the plaintiffs and get some fine art for your walls.

On May 3 the Santa Monica Eleven launched an online art auction that runs two weeks—until May 17.

Renowned artists, painters, photographers, and sculptors from Santa Monica, Venice and London, have furnished artworks for the auction. These works include Laddie John Dill’s Ariel Perspective, Gregg Chadwick’s The Hum of Time and Steve Bernstein’s The Roofs of Rye, as well as cartoons from award-winning satirist Tony Peyser. And a lot of other good stuff at prices for any art collector’s budget.

To view the art and take part, click here.

Remember, though, the auction closes this Sunday, May 17.

To donate to the Santa Monica Eleven directly click here.

Thanks for reading.

 

 

Rejoice. Our long municipal nightmare is (almost) over.

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Tomorrow night the Santa Monica City Council will likely make the final substantive decisions on the update to the City’s zoning laws. The update process began in 2010, when the council passed new land use and circulation elements (the LUCE) of the general plan, and the new zoning was intended to implement the LUCE. It’s been a slog, and instead of a bang, the whole thing is ending in a desultory whimper. No one seems happy—neither those who want more housing built, nor the Residocracy folks who are threatening a referendum to overturn the new law.

Nonetheless you can be happy about something. Our long municipal nightmare is over. It’s been eleven long years since work began on the LUCE, but when the council (in June) gives the zoning ordinance its final blessing we will finally have new land use policies in place for most of the city.

Yes, it’s taken eleven years, three city managers and three planning directors, but, to borrow another metaphor from a certain era, you can see the light at the end of the tunnel. Think about it. It took a little city of 90,000 people eleven years to figure out how the city should evolve for about 20 years. And Washington is gridlocked?

I remember when this all began, in 2004. Back then Councilmember Pam O’Connor voted to begin the LUCE process only when staff assured the council it would take only two years. It should have taken only two years, since it was obvious that there were only two places to put new development, in the old industrial areas and on the boulevards. But with LUCE we managed to spend a few years analyzing “opportunities and challenges” and discovering “emerging themes.”

The process was at times poetic, and the best parts of the LUCE are poetic, but now the poetry has either been obliterated by events or is being removed from the LUCE with the nodding approval of those who were supposed to have believed in the LUCE the most: planning staff and councilmembers who voted for it. Plans to turn the industrial areas into vibrant neighborhoods are dead with the reoccupying of the Paper Mate site. With staff and a majority of councilmembers agreeing to remove Tier 3 and activity centers from most of the boulevards, we’re not going to get anything on the boulevards beyond box retail, two-story office buildings, and generic apartment buildings. What’s left in the LUCE? Not much that justified a six-year visioning process.

(The most disheatening aspect of the whole thing is the capitulation by planning staff. In tomorrow night’s staff report someone had the poor taste to remind everyone that the purpose of the activity centers was to “foster dynamic spaces by enabling the creation of mixed-use development at transportation crossroads on parcels of sufficient size to support creative design and to provide active and passive open space, affordable and market-rate housing, and shared parking facilities.” All of this “poetry” would, of course, only come after a process, called an area plan, to make sure that anything built would be appropriate for the context. But staff and a majority of councilmembers no longer trust themselves or their future replacements to do good planning, and they’ve caved, throwing activity centers out because they might allow development “that could be considered significantly out of scale.” Anything “could be.” Eleven years take their toll, but this is embarrassing.)

For all that’s left of the LUCE, the City could have accomplished just as much by drafting a specific plan for the industrial areas and by updating the zoning on the boulevards within the parameters of the old land use element. As for protecting the neighborhoods, little development was going on in the neighborhoods in 2004 and despite fears and fear mongering little is happening now. Why? It’s ironic, but ever since Costa-Hawkins went into effect in 1999 use of the Ellis Act to tear down old apartments has drastically decreased as apartment owners opt to charge higher rents when vacancies occur, upgrading when they can make money doing so. And the LUCE didn’t even deal with downtown—we’re still in the midst of that specific plan. A new circulation element? That could have been done separately.

But—at least it’s over, right? Hmmm. The LUCE is supposed to last until 2030. If it takes eleven years to update a land use element and draft a zoning ordinance, does that mean we need to start the whole thing again in 2019?

Thanks for reading.